Essay on "How Constitutional Litigation Can Help End Exclusionary Zoning"

Earlier today, I published a guest essay on economist Bryan Caplan's popular Bet On It substack, explaining how federal constitutional litigation can play a key role in expanding affordable housing by curbing exclusionary zoning. Here's an excerpt:

In his excellent new book, Build, Baby, Build: The Science and Ethics of Housing Regulation, Bryan Caplan  advocates far-reaching deregulation of housing markets.  I  agree. As Bryan and other scholars have documented, eliminating exclusionary zoning and other similar restrictions on housing construction would reduce housing costs, enable more people to vote with their feet and "move to opportunity," make the economy much more productive, and greatly enhance protection for property rights.  Bryan also writes that a Supreme Court decision ruling that exclusionary zoning is unconstitutional is "probably the best shot for radical housing deregulation." He's likely right on that point, too.

In "The Constitutional Case Against Exclusionary Zoning," a forthcoming Texas Law Review article, University of Wisconsin law Professor Josh Braver and I explain how to get there. The Supreme Court can rule that all or most exclusionary zoning regulations that restrict housing construction violate the Takings Clause of the Fifth Amendment….

Braver is a progressive living constitutionalist. I am a libertarian generally sympathetic to originalism. We differ on many issues, but agree here. If we can agree on that, I hope others can too….

In his book, Bryan suggests that a Supreme Court decision striking down exclusionary zoning would have to overturn Village of Euclid v. Ambler Realty, the Court's 1926 ruling upholding it. I would be happy to see Euclid go. But, as described in our article, the Supreme Court could easily rule against exclusionary zoning under the Takings Clause even without overruling Euclid. That's because, technically, Euclid didn't consider the Takings Clause at all. It merely ruled that exclusionary zoning does not violate the Due Process Clause of the Fourteenth Amendment…. A future court ruling could make clear that Euclid only applies to the Due Process Clause (something the Supreme Court already suggested in a 2005 decision)….

If the Supreme Court rules that exclusionary zoning regulations are takings, governments would have to pay "just compensation" to affected property owners (usually defined as the "fair market value" of the property right in question). Few if any local governments could afford to compensate all of the many thousands of property owners currently barred from building high-rise or multifamily housing on their land by single-family zoning requirements and other exclusionary rules….

Federal constitutional litigation is far from the only way to deregulate housing, and should not be pursued to the exclusion of other strategies. In recent years, several state and local governments have enacted deregulatory legislation. Montana is a notable example. State constitutional litigation might be another useful tool….

These other options should be pursued. But federal-court judicial review has important unique advantages. State-by-state reform efforts cannot curb exclusionary zoning nationwide, at one fell swoop. A Supreme Court Takings Clause decision can take a major step in that direction. In addition, state-based reforms are often blocked or watered down by strong "NIMBY" ("not in my backyard") opposition, and by widespread public ignorance about the true effects of zoning restrictions…..

Federal judicial review can also help overcome various local government attempts to circumvent zoning reform, and forestall efforts to use state-constitutional "home rule" provisions to block it….

Historically, successful constitutional reform movements have relied on a combination of litigation and political action, rather than focusing on one approach to the exclusion of others. That was true of the civil rights movement, the women's rights movement, same-sex marriage advocates,  gun rights, and such successes as property rights advocates have had in recent years. YIMBY housing advocates would do well to learn from this history….

Many thanks to Bryan for letting me do a guest post, and for his important work on housing issues.